Federal spending bill calls for gun owner secrecy

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A tiny provision in a massive federal appropriations measure aims to remove gun-tracing records from disclosure in response to the City of Chicago’s tortuous court battle for their release.

Dec. 9, 2004 — Federal firearm-tracing data maintained by the U.S. Bureau of Alcohol Tobacco and Firearms is “immune from legal process” under a bill passed by Congress and signed into law Wednesday by President Bush. The provision was buried in a massive spending bill, the Consolidated Appropriations Act of 2005.

The measure comes as the U.S. Court of Appeals in Chicago (7th Cir.) is considering ATF’s request for rehearing of a Freedom of Information Act case before the full appellate court. In September, a three-judge panel ruled against ATF, upholding a trial court decision that the bureau could not claim an FOI Act exemption and must release the records to the City of Chicago. The bureau now says the case is materially altered by the new law.

The case began in 2000 when Chicago officials requested access to the ATF’s firearms tracing database and the agency refused, saying the records’ release would interfere with ongoing criminal and regulatory investigations. The city sued.

The federal appeals court upheld a district court ruling that the records must be released and the U.S. Supreme Court agreed to hear the case in 2002, but before it could, Congress passed spending bills killing funding for FOI Act requests for firearms tracing records. In light of that, the Supreme Court sent the case back to the appeals court for reconsideration. In 2003 Congress incorporated a similar measure again telling the agency it could spend no funds to respond to FOI requests for the records.

Despite the lack of funding for disclosure, the ATF was again ordered by a three-judge panel to release the records. The lack of public funding hypothetically could have blocked the records’ release, Judge William J. Bauer wrote, but Chicago had mooted that issue by offering to pay the disclosure costs itself.

ATF argued that Congress’ killing of funding for disclosure of such records implied its intent to create an absolute prohibition to the records’ release. Judge Bauer disagreed and refused to transform Congress’ procedural hurdle into a blanket substantive exemption to the FOI Act. “On their face, [the appropriations measures] do not specifically exempt the databases from disclosure under the FOIA,” he concluded.

The new language does not focus on funding alone, but rather makes firearms tracing data “immune from legal process.” ATF hopes the law is now on its side. After passage of the measure, the agency urged the appeals court to consider Congress’ action. In a supplement to a petition it had already filed for a rehearing of the three-judge panel’s decision, ATF noted that “[t]he 2005 Act underscores Congress’ intent to substantively bar disclosure of the law enforcement databases at issue.”

The Reporters Committee for Freedom of the Press has filed friend-of-the-court briefs at both the appellate and U.S. Supreme Courts urging the courts to grant access to the records.

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